IN THE SUPREME COURT OF MISSISSIPPI

NO. 2001-DR-00230-SCT

WILLIE JEROME MANNING a/k/a “FLY”

v.

STATE OF MISSISSIPPI

ON MOTION FOR REHEARING

DATE OF JUDGMENT: 11/08/1994

TRIAL JUDGE: HON. LEE J. HOWARD

COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION

COUNSEL

BY: DAVID VOISIN

ROBERT M. RYAN

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:

MARVIN L. WHITE, JR.

DISTRICT ATTORNEY: FORREST ALLGOOD

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - POST

CONVICTION

DISPOSITION: PETITION FOR POST-CONVICTION RELIEF,

DENIED - 08/04/2005

MOTION FOR REHEARING FILED: 06/18/2004

MANDATE ISSUED:

EN BANC.

CARLSON, JUSTICE, FOR THE COURT:

¶1. The motion for rehearing is granted. The original opinion is withdrawn, and this opinion

is substituted therefor.

¶2. Willie Jerome Manning was convicted o f capital murder of Jon Steckler and Tiffany

Miller in Oktibbeha County in 1994. He was sentenced to death one day later, on N ovember2

8, 1994. Manning’s convict ion and sentence were affirmed by this Court in M anning v. State

,

726 So.2d 1152 (Miss. 1998). The motion for rehearing was denied on Octobe r 8, 1998. The

United States Supreme Court denied Manning’s petition for writ of certiorari on April 5, 1999.

Manning v. Mississippi , 526 U.S. 1056, 119 S.Ct. 1368, 143 L.Ed.2d 528 (1999).

¶3. After denial of

the petition for writ of certiorari, in accordance with J ackson v. State

,

732 So.2d 187 (Miss. 1999), we remanded the matter to the Circuit Court of Okt ibbeha

County for appointm

ent of post-conviction counsel. The circuit court then appointed the

Office of Capital Post-Conviction Counsel (OCPCC) to represent Manning in post-conviction

relief proceedings.

¶4. We find no merit in Manning’s petition to proceed in the trial court on post-conviction

relief. Therefore, the petition for post-conviction relief is denied.

FACTUAL BACKGROUND

¶5. O n December 11, 1992, Tiffany Miller and Jon Steckler, both Mississippi State

University students, were shot and killed in Oktibbeha County, Missis sippi. They were last seen

leaving Jon’s fraternity house around 1:00 a.m. on December 11, 1992. Tiffany drove a Toyota

MR2 sports car and lived off campus at the University Hills Trailer Park.

¶6. A motorist discovered Jon Steckler lying on the right side of Pat Station Road at

approximately 2:15 a.m. When Deputy Sheriff Robert Elmore arrived at the scene at 2:33 a.m.,

Jon still had a pulse. While waiting for an ambulance, Deputy El more noticed drag marks

through the gravel road into the woods, and there he d iscovered Tiffany’s body. She had been

shot twice in the face at close range. Jon was shot once in the back of the head and had

extensive abrasions occurring prior to his death, which were consistent with being run over by3

a car at low speed. Ti

ffany’s car was found the next morning parked in front of apartments on

Old Mayhew Road, approximately one hundred yards from her residenc e at the University Hills

Trailer Park.

¶7. In the early hours of the morning of the murder, John Wise, Jon Steckler’ s fraternity

brother, went to his car which was parked outside the fraternity house. At that time, he did not

notice anything suspicio us and locked his car. Later in the morning, Wise found that his car had

been broken into and several items stolen. Several of the stolen items were later li n ked to

Willie Jerome Manning through testimony of several of the State’s witnesses. One of the

items reported stolen from Wise’s car was a gold-colored token. Subsequen tly, a gold token,

very similar to the one reported stolen from Wise’s car, was recovered at the murder scene.

¶8. The prosecution initially indicted Manning for murder in the course of a kidnaping, but

later amended the indictment, substituting a robbery charge. The State introduced evidence

purportin g to link the stolen items, including a leather jacket, a CD player, the gold token, and

a silver engraved beverage holder to Man ning. The State also introduced testimony that

Manning attempte d to sell a watch and ring matching the description of the watch and ring that

Jon Steckler was wearing the night he was killed. Much of the testimony regarding the stolen

items came from Manning’s former girlfriend, Paula Hatho rn. More testimony came from two

jailhouse informants who testified that, while incarcerated, Manning admitted killing the

students and selling the gun he used.

¶9. Manning argues that the lack of physical evi dence linking him to the crime, together

with questionable testimony from witnesses was inadequate to support a ca pital murder

conviction. There were no matching fingerprints or footprints at the scene linked to Manning.4

Manning asserts that the testi mony of Hathorn was not credible since she was induced by a

$25,000 reward for solving the crime and the State’s lenient t reatment on a number of charges

pending against he r. Manning seeks to discredit the testimony of the jailhouse informants,

noting that one of the informants initia lly gave a false statement to the police implicating two

other suspects.

DISCUSSION

¶10. This Court has lon g recognized that post-conviction relief actions have become part of

the death penalty appeal process. Jackson v. Sta te , 732 So.2d 187, 190 (Miss. 1999). Our

standard of review of capital convictions and sentences is one of “heightened scrutiny” under

which “all doubts are to be resolved in favor of the accused.” F lowers v. State

, 842 So.2d 531,

539 (Miss. 2003) (citing Balfour v. State

, 598 So.2d 731, 739 (Miss. 199 2)); W illiamson v.

State

, 512 So.2d 868, 872 (Miss. 1987) (citing Irving v. State

, 361 So.2d 1360, 1363 (Miss.

1978)).

¶11. In his Petition for Post- Conviction Relief, Manning raises numerous claims. The

majority of those claims relate to the State’s failure to disclo s e evidence and claims of

ineffective assistance of counsel. While the Court has considered all of Manning’s claims

separately, the claims have been combined for clarity as: I) failure to disclose exculpatory

evidence; II) polygraph examinat ion; III) ineffective assistance of counsel; and, IV) cumulative

errors.

I. Exculpatory Evidence

¶12. Manning argues that the State presented test imony from Frank Parker that included

numerous lies and misrepresentations; that the State knew or shoul d have known that Parker5

was lying; and, that despite exercising due diligence defense counsel was not able to uncover

impeachment material, the truth about Parker’s pending charges in Texas, or other evidence of

his mo tivation for testifying. Manning asserts that Parker lied about pending criminal charges

against him and lied as to the severity of tho se charges, and that he denied the fact that his

testimony was motivated by the possibility of reward money. Further, Manning asserts that the

fact was never disclosed that au thorities in Mississippi had actually shown Parker crime scene

photos and promised to help him with the criminal charges pending in Texas. Manning argues

that Parker’s testimony was crucial to the prosecution and was the only link between Manning

and the gun used to kill the students. Manning argues that the State knowingly presented false

testimony, and that due to the crucial nature of this testimony, the State cannot show beyond

a reasonable doubt that the use of the false testimony was harmless.

¶13. Manning points out that Fifth Circuit case law and precedent from the U.S. Supreme

Court mandates that a “a new trial is requir ed if the false testimony could have. . . in any

reasonable likelihood affected the judgment of the jury.” Barrientes v . Johnson , 221 F.3d 741,

756 (5th Cir. 2000) (citing Napue v. Illin ois , 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed. 2d

1217 (1959) and Giglio v. United States

, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed .2d 104

(1972)). Manning also cites Brady v. Maryland

, 373 U. S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963), holding that the sup p ression of favorable evidence is a violation of the defendant’s

due process righ

ts. Favorable evidence includes that which is either directly exculpatory or

items which can be used for impeachment purposes. G iglio

, 405 U.S. at 153-155, 92 S.Ct.

763.6

¶14. The State asserts that this allegation was addre ssed on direct appeal and is now

procedurally barred. The State argues that the existence and nature of the charges pending

against Parker were brought out on direct examination and , in more detail, on

cross-examination. The State also points out the affidavits that Manning now uses to

purportedly show that Parker had a deal with the State for his testimony, reveal instead that

Mississippi authorities never made an explicit promise to he lp Parker with the criminal

charges in Texas until after he had testified. The State also as serts that Manning fails to show

actual prejudice sufficient to overcome thi s waiver. Wiley v. State , 750 So.2d 1193, 1210

(Miss. 1999). Furthermore, the State argues that Manning fai ls to establish that this material

to whi ch he points is “exculpatory” material under this Court’s analysis of B rady

, citing Todd

v. State , 806 So.2d 1086, 1091-92 (Miss. 2001).

¶15. In determining whether a Brady violation has occurred, thus mandating a new trial, this

Court applies the four-p rong test articulated in K ing v. State

, 656 So.2d 1168, 1174

(Miss.1995) (adopting four-prong t est from U nited States v. Spagnoulo

, 960 F.2d 990, 994

(11 th Cir. 1992)). The defendant must prove: (a) that the State possessed evidence favorable

to the defendant (including impeachment evidence); (b) that the defe ndant does not possess the

evide nce nor could he obtain it himself with any reasonable diligence; (c) that the prosecution

suppressed the favorable evidence; and (d) th at had the evidence been disclosed to the defense,

a reasonable probability exists that the outcome of the proceedings would have been different.

Todd v. State , 806 So.2d at 1092.

¶16. Ma nning argues that U.S. Supreme Court precedent instructs the State that its knowing

use of or its fai

lure to correct false testimony, or its presentation of evidence which creates7

a materially false impress ion of the evidence, violates a defendant’s right to due process.

Miller v. Pate

, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois

, 360 U.S.

264, 79 S.Ct. 1173, 3 L .Ed.2d 1217 (1959); A lcorta v. Texas

, 355 U.S. 28, 78 S.Ct. 103, 2

L.Ed.2d 9 (1957); M

ooney v. Holohan

, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).

Manning furthe r asserts that the prosecutor knew or should have known that Hathorn was not

truthful, but he pressed a head to rehabilitate her credibility and tarnish the jury’s view of the

credibility and competence of the defense.

¶17. Manning also argues that the State had a duty to disclose any agreements o r material

assurance that it had made to Hathorn in exchange for her testimony a nd that the State failed

to fully disclos e the deal that had been made with Hathorn as to her pending charges. Manning

contends that the failure to disclose this information impacted his ability to challenge

Hathorn’s credibi

lity. The U.S. Supreme Court has held that when the reliability of a given

witness may well be determinative of guilt or innocence, non-disclosure of evidence affecting

credibility especially evidence of any understanding or agreement as to a future pr osecution,

violates due process. Giglio v . United States , 405 U.S. at 154-55, 92 S.Ct. 763. Manning also

argues a violation of Brady for the State’s failure to d isclose information associated with the

Hat horn’s testimony. Manning asserts that the State failed to disclose the true nature of Paula

Hathorn’s position as a state agent and withheld tape recordings betwe en Hathorn and Manning

that were made at the insist ence of and by law enforcement officers. Hathorn was provided a

list of topics to cover and was instructed to telephone Manning. Manning asserts that the

transcripts of those t

elephone conversations show that Hathorn failed to elicit any

incriminating statements from Manning and indicate that several of the statemen ts made by8

Hathorn directly contradic t her subsequent trial testimony. Manning also argues that it was

never disclosed to the defense that the State threatened to charge Hathorn as an accessory after

the fact to murder. All of these things, Manning argues, could have been used for impeachment

purposes and to illuminate Hathorn’s motivation for testifying.

¶18. The State argues tha t Manning fails to back up this claim that there are cassette tapes

and transcripts related

to Hathorn’s testimony. It argues that there are no exhibits attached to

affidavits that these items were found. It also contradicts Mann ing’s claim that the defense was

not able to impeach Hathorn as to her contradictory statements where the trial transcripts

indicate that this very information was brought out a t trial and on direct appeal. Furthermore,

the State notes that Hathorn’s relationship with the sheriff’s department was also brought out

at trial and on direct appeal.

¶19. Pursuant to an Order issued by this Court on December 2, 2004, Circ uit Judge Lee J.

Howard, the same judge who presided over Manning’s initial trial, conducted an evidentiary

hearing on January 12, 2005, to determine if the information contained in the cassette tapes

and transcripts were exculpatory as to Manning, such that a new trial would be warranted. At

the conclusion of the evidentiary hearin g, the trial court took this matter under advisement and

allowed counsel for the State and Manning to submit memo randa of law. On April 22, 2005,

the trial court entered its “Evidentiary Hearing Or der” wherein it addressed three questions:

“(1) Did the State `suppress’ evidence? (2) Is the evid ence actually B rady material? (3) Is there

a reasonable probability that a different verdict would have resulted if the evidence had been1 This evidentiary hearing order, along with the supplemental record from the evidentiary hearing, has

been submitted by the trial court to this Court, consistent with our prior order. Upon this Court’s receipt of

the supplemental record, Manning, through couns el, filed a motion to reset briefing schedule, which was

denied by this Court. Likewise, Manning’s counsel filed additional pleadin gs entitled “Motion to Amend

Petition to Conform to Evidence Introduced by the State at Eviden tiary Hearing (with an attached proposed

`Second Amendment to the Petition for Post-Conviction Relief’),” and “Petitioner’s Objections to the Circuit

Court’s `Evidentiary Hearing Order.’” For the reasons hereinafter discussed, the motion to amend, and the

objections, are denied , as reflected by this opinion and by separate orders this day entered.

9 used?” 1 The trial court held that no B rady violation occurred and that a new trial was not

warranted. The trial court first determined that n o “factual basis exist[ed] to prove that the State

suppressed the existence o f tape-recorded telephone communications between [Manning] and

his girlfriend, Paula Hathorn.” Testimony reflected th at the alleged suppressed evidence was

included with all other physical evidence made available to Manning’s attorneys. Dolph Bryan,

Sheriff of Oktibbeha County, testified that there was a voluminous amount of evidence

collected by his department. Defense counsel could only argue that he believed the tapes were

not made available to counsel becau se had they been made available, he would have used them

at trial to impeach Paula Hathorn.

¶20. Having listened to the c assette tapes and read the transcripts of the recorded

conversations, the trial court det ermined that very little impeachment value could be attributed

to the conversations found on the cassette tapes. The trial court found that the conve rsations

were not “relevant, inculpatory, exculpatory, or useful for impeachment” because Hathorn was

merely repeating q uestions to Manning that had been scripted by the Sheriff’s Department.

Concerning the third question, the trial court determined, after having heard testimony from

both parties and having listened to the recorded conversations on the cassette tapes, that

“nothing contained therein woul d be of sufficient impeachment value so as to give rise to a2 In his motion to amend, proposed second amendment and objections to the trial court’s evidentiary

hearing order, Manning opines that the record does not support the trial court’s finding that the cassette tapes

and transcripts of the Hathorn/Manning telephone conversation were actually included in the large amount

of evidence which the State, directly or through law enforcement, made available for review by defense

counsel during the discovery process. However, from the entire record in this case, including the

supplemented record, the trial court’s findings of fact are supported by a record sufficient to withstand attack

u nder the appropriate “manifestly wrong/clearly erroneous” standard of review.” Miss. Dep’t. of Tr ansp.

v. Johnson

, 873 So.2d 108, 111 (Miss. 2004); Vaughn v. Vaughn , 798 So.2d 431, 433-34 (Miss. 2001). See

also

, Sturdivant v. State , 745 So.2d 240, 243-44 (Miss. 1999).

10 reasonable probability

that a different verdict would have resulted if this evidence had been

used during the original trial of [Manning].”

¶21. Manning’s protestations notwit hstanding, we cannot find fault with the findings of the

trial court. Defense counsel was given every opportu nity to listen to the tapes and view the

transcripts, as all

evidence was made available to defense counsel, and no evidence was

intentionally withhe l d by the State. 2 Additionally, when applying the four-part test to determine

if Brady violations occurred in Manning’s case, the trial court finding on this issue is

supported by th

e record. T

odd v. State

, 806 So.2d at 1092. Therefore, we find this issue to be

without merit.

II. Polygraph Evidence

¶22. Earl Jordan, a co nvicted burglar, was in jail at the same time as Manning. Jordan had

given statement s to the police implicating two other men in the murders of Tiffany and Jon.

Investigators later

ruled out the possibility that the others were involved in the crime. Jordan

then told the author

i ties that Manning had confessed to murdering the students. The State

offered Jordan’s testimony at trial. On cross-examination, Jordan admitted that he had

previously implicated others for the same crime and that he was hoping for favorable treatment

from the State on his pending ch arges. The cross-examination also highlighted some11

discrepancies in Jordan’s testim ony and the facts surrounding the crime. Then during the

re-direct examination, the prosecutor asked Jordan whether he volunteered to take a polygraph

on the information that he provided in this statement and Jordan answered affirmatively.

[The prosecution on re-direc t] Now you were questioned at length about your

motives, you were questioned at length about the substance of what you testified

to. Mr. Jordan, didn’t you volunteer to take a lie detector test on this?

¶23. The defense objected, and the trial court initially sustained that o bjection. Moments

later the trial court reversed its decision, allowing the State to question Jord an about his

volunteering to take the polygraph.

[The prosecution after t h e objection was overruled]: Mr. Jordan, did you

volunteer or agree to take

AAA a lie detector test?

A: Yes, I did.

The trial court then refused to allow defense counsel to conduct a re-cross-examination of

Jordan concerning his statement about the lie detector test.

¶24. On Manning’s direct appeal, this Court found no error in the prosecutor’s questions

about the po l ygraph and held that the questioning was proper since the State made no attempt

to disclose whether Jordan had actually taken the polygraph and/or the results of the test.

Manning v. State

, 726 So.2d at 1179. This decision was based upon Conner v. State , 632

So.2d 1239, 1257-58 (Miss.1993), in which we held that the trial court did not abuse its

discretion when it allowed testimony concerning the willingness of a witn ess for the State to

take a lie

detector test polygraph test in order to rehabilitate that witness’ testimony. With

respect to the polygraph test, Manning now argues that he is entitled to a new trial on three

bases.12

¶25. First, Manning argues that thi s Court has reversed its course since his direct appeal and

has now held that questioning a witness about his or her willingne ss to take a polygraph is

improper. Weatherspoon v. State

, 732 So.2d 15 8 (Miss. 1999). In W eatherspoon

, the

defendant wanted to testify that he had volunteered to take a polygraph test. The trial court

refused to allow that testimony and this Court affirmed noting that “it should be made clear that

any evidence pertaining to a witness’s offer to take a polygraph, refusal to take a polygraph test,

the fact that a witness took a polygraph test or the results of a polygraph test is inadmissible

at trial by the Stat e or by the defense.” I d. at 163. In Weatherspoon

, this Court specifically

noted Manning’s case:

Recently, in Manning v. State

, 726 So.2d 1152 (Miss. 1998), relying on the

Conner decision, this Court held that the testimony of State’s witness Earl

Jordan that he had volunteered to take a polygraph examination “was pr oper

redirect after Jordan’s credibilit y had been attacked on cross-examination by the

defense.” Manning

, 726 So.2d at 1179. Upon careful consideration and further

review, we find that testimony pertaining to a witness’s of fer to take a polygraph,

whether it be a witness for the State or the defense, is not admissible at trial. To

the extent that this holding affec ts C onner v. State

, Lester v. State [, 692 So.2d

755 (Miss. 1997)], and Manning v. State

, cited supra, those case s are overruled.

732 So.2d at 162.

¶26. Second, Manning argues that because he was not allowed to cro ss-examine Jordan after

the reference was made to the polygraph test, a nd that because there was no mention of the

polygraph made in the mandatory discovery, he had no opportunity to rebut this evidence.

¶27. Finally, Mann

ing argues that he was denied his full right to discovery about whether

Jordan took a polygraph and the results of such test. He contends that he was unaware of a

polyg raph examination until the information was first elicited by the State on the re-direct

examination of Jordan. Manning asserts that because of a lack of notice and discovery, he does13

not know whether a polyg raph examination was actually administered to Jordan and, if so, the

results of such an examination. Manning argues that while the prosecution knew that the results

of such an examination would be i nadmissible, the prosecution used the question about

Jordan’s willingness to take a polygraph examination as a way of knowingly creating a false

impression of the evidence for the jury.

¶28. With respect to the discovery issue on the polygraph examination, Manning cites to

cases by the U.S. Supreme Court holding that the State’s knowing use of such evidence, or its

failure to correct false testimony or its presentation of evidence which creates a materially

false impression of the evidence, violates the d efendant’s right to due process. Miller v. Pate

,

386 U.S. 1, 87 S.Ct. 785, 17 L .Ed.2d 690 (1967); N apue v. Illinois

, 360 U.S. 264, 79 S.Ct.

1173, 3 L.Ed.2d 1 217 (1959); A lcorta v. Texas

, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9

(1957); Mooney v. Holohan , 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).

¶29. At the t

ime of Manning’s trial, C onner v. State

, 632 So. 2d 1239 (Miss. 1993), was the

precedent of this Court regarding the admissibility of polygraph testimony. In C onner

, the

prosecution made two references to t he polygraph: first, during the direct examination of its

s tar witness, Detective James Brown, and second, during closing arguments. Prior to C onner

,

this Court had held that:

neither the results of a lie detector test nor the fact that one was taken is

admissible as evidence, and that t he introduction of such evidence constitutes

reversible error. See Pennington v. State

, 437 So.2d 37, 40 (Miss. 1983);

Jordan v. State , 365 So.2d 1198 (Miss. 1978), cert. denied, 444 U.S. 885, 100

S.Ct. 175, 62 L.Ed.2d 114 (1979); Mattox v. State

, 240 Mi ss. 544, 128 So.2d

368 (1961). However, where the focus is not on the e xam itself but instead on

one’s wil lingness or reluctance to submit to a polygraph exam, the Court has

arrived at a different conclusion.14

In Stringer v. State

, 454 So.2d 468 (Miss. 1984), ce rt. denied, 469 U.S. 1230,

105 S.Ct. 1231, 84 L.Ed.2d 368 (1985), we held that

the mere mention of the failure to submit to an examin ation could

not be reversible error under the record in this case. It was

i nconsequential in the case compared with all the other evidence

placed be fore the jury. Further bolstering of this opinion is that

we are not dealing with th e attempted introduction of the

results of a polygraph ex amination, only the refusal to take

one for whatever reason

.... Stringer

, 454 So.2d at 4 74-75; see also Garrett v. State

, 549 So.2d 1325,

1330-31 (Miss. 1989) (where document disclosing defendant’s willingness to

take lie detector test was inadvertently delivered to jury, Court ruled that, under

Stringer, no reversible error occurred).

It is of course the rule in virtually all jurisdictions that a witness ’s unimpeached

or unquestioned credibility may not be bolstered by an y means, including

references to poly graphic evidence. See, e.g., T iner v. State

, 214 Miss. 551, 59

So.2d 2 87 (1952) (testimony supporting veracity of witness is inadmissible

whe re veracity of witness has not been assailed); S parks v. State

, 820 S.W.2d

924, 929 (Tex.Ct.App.1991) (prosecution impermissibly bolstered witness’s

testimony by asking, “Did you agree to take a polygraph exam ination?” where

only purpose of question was to add credence to witness’ s earlier, unimpeached

testimony); Unit e d States v. Vigliatura

, 878 F.2d 1346, 1349 (11 th Cir.1989)

(“a witness’s or defendant’s willingness to submit to a polygraph examination

is inadmissible to prevent bolstering of credibility”).

Conner

, 632 So. 2d at

1257-58 (emphasis in original). However, this Court announced a new

rule of procedure when it interpreted Miss. R. Evid. 608(b) which stated that once a witness’s

integrity has been impugned:

[s]pecific instances of t

he conduct of a witness, for the purpose of ... supporting

his credibi

lity, ... may ... in the discretion of the court, if probative of

truthfulness or untruthfulness, be inquired into on cross-examination of the

witness (1) con

cerning his character for truthfulness or untruthfulness, or (2)

concerning the character for truthfulness or un truthfulness of another witness

as to which character the witness being cross-examined has testified.

Conner

, 632 So. 2d at 1259. We determi ned that the second exception applied to Conner’s

case. The defense had att acked the State’s witness regarding his credibility. Therefore, the15

State in an

attempt to rehabilitate this witness, questioned the detective regarding the witness’s

agreement to take a polygraph exam. We held that:

Although this Court has never explicitly held th at references to polygraph tests

are admissible when used to rehabilitate an impeache d witness, the Court did

find in Pittman v. State

, 236 Miss. 592, 111 So.2d 415 (1959 ), that a reference

to such a test on redirect examination, where the results of the test were not

disclosed, did not amount to rev ersible error. S ee Pittman

, 236 Miss. at 597-

98, 111 So.2d at 417. In light of Stringer

, Pittman

, and M .R.E. Rule 608, we

find that the trial court did not abuse its discretion by permitting the prosecution

to introduce evidence concerning Earnest Stevens’ agreement to take a lie

detector test.

Conner

, 632 So.2d at 1259. Therefore, at the time of Manning’s 1994 trial, the trial court

properly followed this Court’s precedent in allowing the State to attempt to r ehabilitate a

witness b y questioning him regarding his agreement to take a polygraph test, and we upheld the

trial court’s action on direct appeal. Manning , 726 So.2d at 1179.

¶30. In 1999, five years after Manning’s trial, this Court handed down W eatherspoon which

overruled Conner and the previous Manning decision. In Weatherspoon

, during a bench

conference, defense counsel informed the trial court that he was going to ask the defendant to

testify to the fact that he offered to take a polygraph test. The State objected, and the trial court

sustained the objection, finding the proffered testimony would not be prope r evidence. I d. at

162. We agreed with the trial court and held:

Upon careful consider ation and further review, we find that testimony pertaining

to a witness’s offer to take a polygraph, whether it be a witness f or the State or

the defense, is not admissibl e at trial. To the extent that this holding affects

Conner v. State

, Lester v. State

, [692 So. 2d 755 (Miss. 1997)] and M anning

v. State , [] those cases are overruled.

Weatherspoon , 732 So.2d at 162.3 The plurality’s decision was approved by the majority in Sawyer v. Smith

, 497 U.S. 227, 110 S.Ct

2822, 111 L.Ed.2d 193 (1990).

16 ¶31. Therefore, today’s question before thi s Court, is whether W eatherspoon may be applied

retroactively. Manning’s direct appeal is final and the case sub judice is before us on a motion

for post-conviction relief. In Nixon v. State

, 641 So. 2d 751 (Miss. 1994), this Court was

faced with a similar situation. Nixon was convicted of capital murder and was sentenced to

death. His conviction and sentence were affirmed on direct appeal. Nixon then filed a petition

for post-conviction relief on the gr ounds that the intervening decision of P owers v. Ohio

, 499

U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), applied retroactively. We disagreed and

denied his petition.

¶32. On direct appeal, Nixon argued that the State’s discri minatory use of

peremptory

challenges violated his constituti onal rights. N ixon

, 641 So. 2d at 753. We concluded that

because Nixon was white, he could not object to the exclusion of black jurors. I

d. However,

in Powers

, the United States Supreme Court held that “a criminal defendant may object to a

prosecutor’s discriminatory use of peremptory challenges even though t he defendant was not

of the same race as the challenged juror.” Nixon

, 641 So. 2d at 753. Therefore, on motion for

PCR, Nixon argued that this presented a new rule of federal constitutional law which applied

retroactively. I

d. Thus, this Court had to decide whether Nixon was procedurally barre d from

raising this issue or whether this decision could be applied retroactively.

¶33. In Teague v. Lane

, 489 U.S. 288, 311, 109 S.Ct. 1060, 1075-76, 103 L.Ed.2d 334, 356

(1989), the United States Supreme Court held, by a plurality vote 3 that “a new rule of

constitutional law will not be appli ed retroactively to a case on h abeas review unless it falls17

within one of two limi

ted exceptions.” “The first exception suggested by Justice Harlan--that

a new rule should be applied retroactively if it places ‘certain kin ds of primary, private

individual c onduct beyond the power of the criminal law-making authority to proscribe,’” and

the second exception is “reserved for watershe d rules of criminal procedure.” I d. In approving

this plurality decision, the United States Supreme Court later held that:

The principle announced in Tea gue serves to ensure that gradual developments

in the law over which reasonable jurists may disagree are not later used to upset

the finality of state convictions valid when entered. This is but a recognition that

the purpose of federal habeas corpus is to en sure that state convictions comply

with the federal law in existence at the time t he conviction became final, and not

to provide a mechanism for the continuing reexamination of final judgments

based upon later emerging legal doctrine.

Sawyer

, 497 U.S. a t 234, 110 S.Ct. at 2827, 111 L.Ed.2d at 206. Finding that this rationale

was consistent with the Mississippi Uniform Post-Conviction Collateral Re lief (“PCR”) Act,

this Court stated that:

Accordingly, in determining whether a prisoner may avail himself of an

i ntervening decision, this Court applies our PCR act to determine whether an

issue raised on PCR is one warr anting relief from waiver based on cause and

actual prejudice, as contemplated by § 99-39-21(1), or one not procedurally

b arred, although litigated at trial and on direct appeal, because of the existence

of ca use and actual prejudice, as contemplated by § 99-39-21(2). Application

of this test is based on state law grounds. S ee Miss. Code Ann. §§ 99-3 9-3, 99-

39-21(1), and 99-39- 21(2) (Supp.1993).

Nixon

, 641 So.2d at 754-55 (footnotes omitted). As to the cause element of the PCR Act, we

found that P owers did create a new rule of law and that prior to the new rule, there was no

indication that Batson would be chang ed; therefore, the showing of cause had been met by the

interveni ng decision. N ixon

, 641 So. 2d at 755. We relied heavily on Teague in determining

if there was a showin

g of actual prejudice. We determined that pursuant to T eague the18

defendant would have to show a ctual prejudice within one of the two exceptions enumerated

by the Supreme Court.

The first Teague exception is not met in this ca se because “[a]pplication of the

fair cross section requirement to the petit jury would not accord constitutional

protect ion to any primary activity whatsoever.” A ccord Teague

, 489 U.S. at

311 , 109 S.Ct. at 1075-76, 103 L.Ed.2d at 356. Stated differently, the new rule

does not place a category of prim ary conduct beyond the reach of the criminal

law nor does it prohibit punishment for a c lass of defendants. T eague

, 489 U.S.

at 311, 109 S.Ct. at 1075-76, 103 L.Ed.2d at 356. The second Teague exception

affords Nixo n no comfort because it is limited to those new procedures without

which the like

lihood of an accurate conviction is seriously diminished. Restated,

“a bsence of a fair cross section on the jury venire does not undermine the

fundamental fairness that must underlie a conviction or seriously dimini sh the

likelihood of obtaining an accurate conviction.” Id

. at 315, 109 S.Ct. at 1078,

103 L.Ed.2d at 359. T

he Teague Court concluded that “a rule requiring that petit

juries be composed of a fair cross section of the community would not be a

‘bedrock procedural element’ t hat would be retroactively applied under the

second exception.” Teague

, 489 U.S. at 315, 109 S.Ct. at 1078, 103 L.Ed.2d at

359.

Nixon

, 641 So.2d at 755. Therefore, we held that beca u se there was no actual prejudice

suffered by Nixon, he was not en titled to relief pursuant to the Act. I d. Further, we held that

“the Powers decision should not be applied retroactively to Nixon’s final conviction as the

Powers rule is not a prerequi site to fundamental fairness of the type that may come within the

exception.” Id.

¶34. The United States Supreme Court has once agai n addressed this issue. In S chriro v.

Summerlin

, 542 U.S.348, 124 S.Ct. 2519, 159 L.E d.2d 442 (2004), the Supreme Court held

that the decision in Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d. 556 (2002),

was procedural and did not apply to death penalty cases already final on direct appeal, nor did19

it announce a wate rshed rule of criminal procedure. Therefore, the Ninth Circuit’s invalidation

of the defendant’s death sentence was reversed.

¶35. In Schriro , the Supreme Court stated that:

When a decisio n of this Court results in a “new rule,” that rule applies to all

criminal case s still pending on direct review. G riffith v. Kentucky

, 479 U.S.

314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). A s to convictions that are

already final, however, the rule applies only in limited circums tances. New

substantive rules generally apply retroactively. This includes decisions t h at

narrow the scope of a criminal statute by interpreting its terms, see B ousley v

.

United States

, 523 U.S. 614, 620-621, 118 S.Ct. 1604, 140 L.Ed.2d 828

(1998), as well as constitutional d eterminations that place particular conduct or

pe rsons covered by the statute beyond the State’s power to punish, see S affle

v. Parks

, 494 U.S. 484, 494-495, 110 S.Ct. 1257, 108 L.Ed. 2d 415 (1990);

Teague v. Lane , 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)

(plurality opinion). Such rules apply retroactively because they “necessarily

carry a significant risk that a defendant stands c onvicted of ‘an act that the law

does not make crimin

al’” or faces a punishment that the law cannot impose upon

him. Bousley

, supra

, at 620, 118 S.Ct. 1604 (quoting Dav is v. United States

, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)).

New rules of procedure, on the other hand, generally do not apply retroactively.

They do not produce a class of persons co n victed of conduct the law does not

make criminal, but merely raise th e possibility that someone convicted with use

of th e invalidated procedure might have been acquitted otherwise. Because of

this more speculative con nection to innocence, we give retroactive effect to

only a small set of “‘watershed rules of crim inal procedure’ implicating the

fundamental fairness and accuracy of the criminal proce eding.” S affle

, supra,

at 495, 110 S.Ct. 1257 (quoting Teague , 489 U.S., at 311, 109 S.Ct. 1060).

That a new procedural rule is “fundamental” in some abstract sen se is not

enough; the rule must be one “without which the likelihood of an accurate

conviction is seriously diminished.” Id.

, at 313, 109 S.Ct. 1060 (emphasis

added). This class of rules is extrem ely narrow, and “it is unlikely that any ...

‘ha[s] yet to emerge.’” T yler v. Cain

, 533 U.S. 656, 667, n. 7, 121 S.Ct. 2478,

150 L.Ed.2d 632 (2001) (quoting Sawyer v. Smit h , 497 U.S. 227, 243, 110

S.Ct. 2822, 111 L.Ed.2d 193 (1990)).

Schriro , 124 S.Ct. at 2522-23.20

¶36. A rule is procedural if that rule “r egulates the manner of determining the defendant’s

culpability.” Id. at 2523. However, a rule is subs tantive if that rule “alters the range of conduct

or th e class of persons that the law punishes.” I d. Because Ring held that “a sentencing judge,

sitting without a jury, [may not] find an aggravat ing circumstance necessary for imposition of

the death penalty,” Ring's holding is classified as procedural. Ring

, 536 U.S. at 609, 122 S.Ct.

2428. “ Ring altered the range of permissible methods f or determining whether a defendant's

conduct is punishable by death, requiring that a jury rather tha n a judge find the essential facts

bearing on punishment. Rules that allocate decisionmaking aut hority in this fashion are

prototypical procedural rules. . . .” Schriro , 124 S.Ct. at 2523.

¶37. As to the w atershed requirement, the Supreme Court found that the “evidence [was]

si mply too equivocal to support the conclusion” that “judicial factfinding so ‘ s eriously

diminishe[s]’ accuracy that there is an ‘impermissibly large risk’ of punishing conduct the law

does not reach.” Id. at 2525. Therefore, the Supreme Court held that “ Ring announced a new

procedural rule which did not retroactively apply to cases already final on direct review.” Id.

at 2526. Applying the rules found in Teague

, Schriro and Nixon

, we fin d that W

eatherspoon

announced a procedural rule which did not retroactively apply to cases a lready final on direct

review.

¶38. As in N ixon

, Weatherspoon did create a new rule of law, finding that polyg raph test

evidence was not admissible. During Manning’s trial, the State was allowed o n re-direct

examination to que stion its witness, Earl Jordan, as to whether he volunteered to take a

polygr aph exam. This was the only time this test was mentioned by the State. However,21

Manning, through counsel, got before the jury on three different occasions that one of

Manning’s witnesses, Carl Rambus, had agreed to take a polygraph exami nation. Rambus had

tes tified that Manning was not the person who had attempted to sell him the ring (identified as

Jon’s high school class ring). On re-direct examination by defense counsel, Rambus stated he

had agreed to take a polygraph examination. During defense counsel’s cross-examination,

Detective David Lindley testified that Rambus had ag reed to take a polygraph examination.

Dur ing defense counsel’s cross-examination, Sheriff Dolph Bryan testified that Rambus had

agreed to take a polygraph examination. During defense counsel’s cross-ex amination,

Detective Gary Turner could not conf irm that Rambus had agreed to take a polygraph

examination. During the closing argument to the jury, defense counsel argued, inter alia:

You heard Carl Rambus or heard the sheriff and the depu ty, the detective, David

Lindley, all testify Carl Rambus agreed to take a polygraph.

Thus, the jury heard Manning’s counsel make references on f ive different occasions that

Manning’s witness, Carl Rambus, had offered to take a polygraph examination.

¶39. Without question, Weatherspoon created a new rule of law concerning the admissibility

of polygraph evidence, or refe r ences to polygraph examinations, and that prior to the new rule,

there was n

o indication that our rule as pronounced in C onner would be changed. Thus, the

element of cause was met by the intervening decision.

¶40. As to actual prejudic e, neither of the two elements enumerated in T eague are met.

First, “the new rule does not place a category of primary conduc t beyond the reach of the

criminal law nor does it prohibit punishment for a cla ss of defendants.” 489 U.S. at 311, 109

S.Ct. at 1075-76, 103 L.Ed.2d at 356. Second, this procedural rule does not diminish the22

likelihood of an accurate convic t ion. Id

. at 315, 109 S.Ct. at 1078, 103 L.Ed.2d at 359.

Because no actual prejudice is suffered by Manning, he is afforded no relief pursuant to the

Act.

¶41. Because W

eatherspoon was a procedural rule and it did not announce a watershed ru l e

of criminal procedure, its holding may not be retroactively applied to Manning’s case which

was final on direct review. Therefore, this issue is without merit.

III. Ineffective Assistance of Counsel

¶42. “The benchmark for judging any claim of ineffectiveness [of counsel] mus t be whether

counsel’s conduct so undermined the proper functioning of the adversarial process that the

tr ial cannot be relied on as having produced a just result.” S trickland v. Washington

, 466 U.S.

668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claimant must dem onstrate that counsel’s

performanc e was deficient and that the deficiency prejudiced the defense of the case. I d. at

687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the

conviction or death sentence resulted from a breakdown in the adversary process that renders

the result unreliable.” S tringer v. State

, 454 So.2d 468, 477 (Miss. 1984) (citing Strickland

,

466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry is on whether c ounsel’s assistance

was reasonable consid ering all the circumstances. I d. A reviewing court must strongly presume

that counsel’s conduct falls within a wide range of reasonable professional assistance. Further,

one who claims ineffective ass istance must overcome another presumption that the challenged

act or omission “might be cons idered sound trial strategy.” I d. at 477. In other words, defense

counsel is presumed competent. Strickland , 466 U.S. at 690, 104 S.Ct. 2052.23

¶43. As for the second prong of prejudice to the defense, a reviewing court must determine

whether there is “a reasonable probability that, but for couns e l’s unprofessional errors, the

result of the proceeding would have been different.” Mohr v. State

, 584 So.2d 426, 430 (Miss.

1991). This means a “probability sufficient to undermi ne the confidence in the outcome.” I d.

¶44. In a dea th penalty case, the ultimate inquiry is “whether there is a reasonable probability

that, absent the errors, the sen tencer would have concluded that the balance of the aggravating

and mitigating circumstances did not warrant death.” S trickland

, 466 U.S. at 695, 104 S. Ct.

2052. There is no consti tutional right to errorless counsel. M ohr

, 584 So.2d at 430. The right

to effective counsel does not entitle a defendant to have an attorney who makes no mistakes

at trial but simply affords the right to have competen t counsel. If the post-conviction

application fails on either of the Stric kland prongs, the analysis of that issue ends. D avis v.

State

, 743 So.2d 326, 334 (Miss. 1999) (citing F oster v. State

, 687 So.2d 1124, 1130 (Miss.

1996)). We thus proceed to address the claims of ineffective assistance of counsel as to: (A)

impeachment of Earl Jordan and Frank Parker; (B) the testimony of Paula Hathorn; and (C)

defense counsel’s failure to present an alib i defense and mitigating evidence and failure to

preserve issues for appeal.

A. Failure to impeach Earl Jordan and failure to adequately develop

evidence to impeach Frank Parker.

¶45. Manning argues that his defense counsel was ineffect ive for failing to properly impeach

Earl Jordan and failin

g to cross-examine Jordan about certain details of his testimony and any

deal that may have been struck with the State in exchange for the testimony. Likewise, Manning

asserts that his trial counsel was ineffective for failing to exercise due diligen ce and failing24

to uncover evidence to impeach Frank Parker, another jailhouse informant. Manning argues that

failure to follow-up for purposes of impeachment, failure to l ay a proper foundation to rebut

the testimony of the State’s star witness, failure to follow well-established evidentiary rules

and missed opportunities to impeach Jordan as a credible witness, meet s the Strickland

standard of ineffective assistance of counsel.

¶46. The State asserts that Manning’s ineffective assistance of cou nsel claim as to Jordan’s

testimony was addressed on direct appeal and cannot be relitigated in post-conviction

proceedings. Furthermore, the State argues that Manning’s claim of ineffective assistance of

counsel as to Parker’s testimony is procedura lly barred for failure to raise it on direct appeal,

noting that several other claims of ineffective assistance were raised on direct appeal and that

this one should have been included. Lastly, the State argues that Mann ing’s claim that his

counsel failed to adequately impeach Frank Parker is absolutely refuted by the trial transcript.

¶47. The State is co rrect. On direct appeal, we found that Jordan was thoroughly

cr oss-examined and that there was other evidence before the jury that Jordan was hoping for

a favorable deal in exchange for his testimony. The transcript indicates that the defense c ounsel

cross-examined Jordan and attempted to discredit his testimony. Manning’s defense counsel’s

performance was not deficient merely because he did not co nduct the cross-examination of

Jordan in every regard as the post-conviction counsel asserts he shoul d have done.

Post-conviction counsel has the benefit of hindsight. See Bell v. Cone

, 535 U.S. 685 , 702, 122

S.Ct. 1843, 152 L.Ed.2d 914 (2002); K immelman v. Morrison

, 477 U.S. 365, 382, 106 S.Ct.

2574, 91 L.Ed.2d 305 (1986); United States v. Cronic

, 466 U.S. 648, 656, 104 S.Ct. 2039,

80 L.Ed.2d 657 (1984).25

¶48. Notwithstanding the procedural b ar, as to the testimony of Frank Parker, the transcripts

reveal that defense counsel conducted a thorough cross-examination of Parker, including the

fact that he had criminal charges in Texas dropped after he came forward with information in

Manning’s case. Defense counsel also pursued a line of que stioning attempting to call into

doubt whethe r Parker could really have overheard the conversation in which Manning stated

that he sold the gun (s) on the street. We find that these claims fail to meet the S trickland test

and are without merit.

B. Testimony of Paula Hathorn.

¶49. Manning argues that defense counse l, Mark G. Williamson, had a conflict of interest

because he had

previously represented Paula Hathorn, one of the State’s key witnesses, on bad

check charges. Manning also asserts that the trial judge was on notice o f the conflict and

committed error when he did not conduct a thorough inquiry into any possibility of a conflict.

Cuyler v. Sullivan

, 446 U.S . 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). If the trial judge has

a reas onable basis to believe that defense counsel faces an actual conflict, the judge must

conduct a hearing. The failure to do so mandates reversal. Hol loway v. Arkansas , 435 U.S.

475, 9 8 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Manning asserts that “an actual conflict exists

when d efense counsel is compelled to compromise his or her duty of loyalty or zealous

advocacy to the accused by choosing between or blending the divergen t of competing interests

of a former or current cli ent.” Perillo v. Johnson , 205 F.3d 775, 781 (5 t h Cir. 2000). This

conflict, Manning argues, ha d an adverse effect on his defense because his attorney had no real

opportunity to rebut or refute any of the false testimony that Hathorn provided and her false

testimony undermined the credibility of Manning’s defense.26

¶50. The State succinctly argues that this claim was raised on direct appeal and cannot be

relitigated on post-conviction review. See Miss. Code Ann. § 9 9-39-21(3); W iley v. State

, 750

So.2d 1193, 1200 (Miss. 1999); Foster v. State , 687 So.2d 1124, 1135-37 (Miss. 1996). The

allegations that the State presented evidence that created a f alse impression and withheld

i nformation from the defense is all supported in Manning’s post-conviction relief application

by an affidavit of Hatho rn given during a recent incarceration and vaguely expressed, years after

the trial.

¶51. In Manning’s case, Hathorn was merely a witness, not a party to this action and

Williamson’s represent ation was completely unrelated to the events and charges of the

Manning case. There was no reasonable basis for the judge to conduct a hearing as to any such

conflict. On direct appeal, we found that defense counsel co nducted a full cross-examination

of Hathorn, and there is no reasonable probability that the result of the trial wo uld have been

different if the jury had n ever known that defense counsel had represented Hathorn in the past.

726 So.2d at 1169. Furthermore, on direct appeal, this Court held that defense counsel had

no conflict

in his representation of Manning. Id. This issue has been litigated and is barred

as a basis for post-conviction relief, and alt ernatively, upon consideration, it is also without

merit.

¶52. Also related to Hathorn’ s trial testimony, Manning alternatively asserts that his trial

counsel was ineffective for not adequately impeaching Hathorn. Manning cla ims that his

attorney faile d to take steps to establish the falsity of her testimony about his representation

of her and he failed to impeach her with the vast number of bad checks that she had written

since she first began giving statements to the sheriff. Manning argues that such impeachment27

would have shown Hathorn’s w illingness to lie because of her anger and would have revealed

Hathorn’s false testimony about Williamson’s representation of her, the magnitude of

Hathorn’s criminal history, and the subsequent lenient treatment that Hathorn received on her

pending charges.

¶53. The State again argues res judic ata and procedural bar to this claim. The State also

asserts that the charges of trial counsel’s ineffectiveness are refuted by the trial transcripts and

an on-point review of those issues on direct appeal.

¶54. This issue was litigated on direct appeal and this Court found Manni ng’s trial court

representation to be effective. The Court noted that “the record indicates tha t Williamson

conducted a full cross-examination of Hathorn.” Id. We find that this issue is procedurally

barred and without merit, and additionally, it is wi thout merit. Defense counsel conducted a

full cross-examination of Hathorn and while Hathorn did make comments as to defense

counsel’s past rep resentation of her, it was not in such a way as to prejudice Manning’s defense

or cause counsel to be ineffective.

¶55. In his motion to amend and proposed amendment to his PCR mo tion, as well as his

objections to the trial court’s evidentiary hearing order, Manning asserts that if we should

accept the trial court’s findings of fact, the court-ordered evidentiary h earing conducted by the

trial court revealed ineffective assistance of trial counsel when he either overlooked the

micro-cassette tapes and partial transcripts of the telephonic conversations between Hathorn

and Manning, or having seen this evidenc e, failed to attach any significance to them so as to

use this evidence for impeachment of Hathorn. Additionally, Manning asserts that the

evidentiary hearing revealed there was other evidence which Sheriff Dolph Bryan offered for4 As already noted, Manning has likewise filed a 26-page objection to the circuit co urt’s entry of its

“Evidentiary Hearing Order,” w hich order was entered subsequent to the trial court’s conducting an

evidentiary hearing pursuant to this Court’s order. In essence, through this written objection, Manning

requests that we “reject” this order. This we refuse to do, and the objection is thus denied as reflected by

an order this day entered.

28 examination which defense counsel simply failed to review. First of all, we find procedural

bar; however, procedural bar notwithstanding, we discuss this ad d itional claim and deny this

claim on its merits. As discussed, s upra

, concerning Issue I as to “Exculpatory Evidence,” the

trial court appropriately found on remand that inasmuch as these telephonic conversations were

“scripted” by law enforcement by getting Hathorn to ask particular questions of Manning in an

effort to prompt incriminating state ments from him, the taped conversations had little if any

impeachment value. The record in today’s case clearly reveals the existence of an enormous

amount of evidence. We refuse to find ineffective assistance of counsel based on a perceived

or claimed failure to examine every piece of evi dence in every box. Thus, this issue is without

merit. 4

C. Alibi Defense

.

¶56. Trial counsel produced several wit nesses that placed Manning at a nightclub on the night

of the murders. However, two of those witnesses were only able to testify that they saw

Manning at

around 11:30 or 12:00. The testimony of Manning’s other witnesses was

im peached and criticized by the State as being unreliable. Manning asserts that if trial counsel

had conducted a more thorough investigation he could have presented a subs tantially stronger

case. Post-conviction counsel includes the affidavits of S h erron Armstead Mitchell, Doug

Miller and Troylin Jones. The recollections of these witnesses place Manning at the nightclub

well after midnight, and one of the witnesses’ statements placed Manning at the nightclub at29

the very hour that the murde rs were taking place. Manning argues that he was prejudiced by

counsel’s failure to develop more substantial evidence in supp ort of his alibi and notes that

reviewing courts have found counsel ineffective for inadequately presenting an alibi defense.

See Grier v. State , 299 S.C. 321, 384 S.E.2d 722 (1989).

¶57. We find that Manning fails to establish that his t rial counsel’s performance was

deficient where counsel produced s everal witnesses placing Manning at a nightclub on the night

of the murder.

D. Preservation of issues for direct appeal.

¶58. Manning argues that trial counsel faile d to preserve several issues, including his

assertion that the prosecutor v iolated B atson v. Kentucky

, 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69 (1986), in striking blacks from the jury pool where his reasons were pretextual.

Li kewise, Manning argues that trial counsel’s performance was deficient for failing to object

when Hathorn testified as to Manning’s pri or bad acts and character. Manning also argues that

defense couns e l promised, in his opening statement, to produce testimony that someone else

had confessed to the crime. When the defense counsel did not follow through by presenting

this testimony, the prosecutor noted it in his closing argument. Thus, accord ing to Manning,

the defense attorney’s unkept promise of such testimony was detrimenta l to his defense.

Finally, Manning asserts that defense counsel was ineffective for failing to object when the

prosecutor re ferred to Manning as a “monster” and likened the case to the O.J. Simpson case.

¶59. T he State argues that Manning is wrong to assert that the defense counsel did not

preserve Batson claims. The defense attorney did raise a claim under B atson

, and the trial

court required the State to give race-neutral reasons for its per emptory challenges. Those30

reasons were then reviewed b y this Court on appeal. 726 So.2d at 1183-86. Next, the State

argues that Manning’s claim that the defense counsel was ineff e ctive for failing to object to

Hathorn’s te stimony cannot be sustained where the underlying substantive issue was raised on

direct appeal and decided against the Manning.

¶60. The State correctly points out that the issue of Hathorn’s testimony and whether or not

trial counsel was ineffective was litiga ted on direct appeal and that it is now procedurally

barred. As for the merits of this claim, we find that Manning’s clai ms do not rise to the level

of Strickland , and we thus, alternatively, deny this issue on its merits.

E. Mitigation Evidence

.

¶61. Manning asserts that trial counsel ha d a duty to uncover all relevant mitigating evidence

and to conduct a thorough investigation i nto possible mitigating evidence. The record indicates

that there were witnesses who had knowledge of Manning’s family and we re willing to

cooperate w ith defense counsel. Specifically, there are letters in the file from Mark

Williamson (defense

counsel) to Richard Burdine (co-counsel) suggesting witnesses for the

mitigation portion of the penalty phase of trial. Those witnesses were appa rently never

contacted. Furtherm

ore, Manning includes affidavits from an attorney in Louisiana and an

investigator which declare the existence of valuable mitigating evid e nce that was never

presented at trial. Failing to present such evidence, Manning argues, is proof of his trial

counsel’s deficient performance and satisfies both prongs of Strickland

.

¶62. The “failure to present a case in mitigation during the sentenc ing phase of a capital trial

is not, per se, ineffective assistance of counsel.” W illiams v. State , 722 So.2d 447, 450 (Miss.

1998), citi

ng Williams v. Cain , 125 F.3d 269, 277 (5 t h Cir. 1997). In the present case,31

Manning’s defense atto rney did in fact present a case in mitigation for the jury to consider.

Furthermore, this claim was raised on direct appeal and the Court found that Manning failed

to show prejudice related to the trial counsel’s failure to call other witnesses. Likewise, the

Court noted that “additional character witnesses would not have, with any re asonable

prob ability tipped the balance between mitigators and aggravators.” 726 So.2d at 1170. This

claim is procedurally barred where this Court has alread y addressed its merits; however,

alternatively, we find this issue to also be without merit.

F. Closing argument

.

¶63. Ma nning argues that because of the lack of investigation and preparation for the penalty

phase of trial, the defense counsel had nothing substantial to present in his closing argument.

Manning argues that defense counsel, therefore, presented a powerless and incoherent closing

argument which resulted in prejudice to his defense. Thus, it is Manning’s position that this

satisfies both prongs of Strickland and warrants post-conviction relief.

¶64. On direct appeal, this Court found that trial counse l’s closing argument was coherent

and not a poor strategic choice. We noted: “It is th e opinion of this Court that Burdine’s

performance was not deficient.” Id. at 726 So.2d at 1171. Because we address ed this issue on

direct appeal, we now find this issue procedurally barred; however, alternatively, we again

reiterate it is without merit.

G. Failure to object.

¶65. Manning argues that the pro secutor’s remark during the State’s closing argument

improperly elaborated on religious themes and violated his constitutional right to a reliable

determination of his sentence. He also asserts that the prosecutor made improper and32

prejudicial references to what M anning might do if he were paroled. Furthermore, Manning

argues that his trial counsel was ineffective for fail ing to object to these remarks and preserve

the issues for appeal.

¶66. The State counters that the claim was not raised on direct appeal and is therefore barred.

Without waiving the bar, the State argues that this Court has held that ar guments with scriptural,

religious or biblical references are pro per when made in response to scriptural or religious

arguments by defense counsel. Looking to the transcript, it is clear that the prosecutor was

responding to those type of “vengeance is mine” arguments set out by the defense.

¶67. We agree that this claim is barred for failure to raise it on direct appeal.

Notwithstanding procedural b ar, we find this claim has no merit where this Court has found

Biblical or scriptural references in c losing arguments to be within the broad latitude afforded

at trial.

[t]h

is Court has continually held that counsel is afforded broad latitude in

closing argument. This latitude, set out by the Court in N elms & Blum Co . v.

Fink

, 159 Miss. 372, 382-38 3, 131 So. 817, 820 (1930), has been referred to

in the context of capital cases. In Nelms

, we stated that “[c]ounsel may draw

upon literature, hi

story, science, religion, and philosophy for material for his

argument.” Id. at 382-384, 131 So. 817. S ee Hansen v. State

, 592 So.2d 114,

139-140 (Miss. 1991).

Berry v. State

, 703 So.2d 269, 281 (Miss. 1997). Considering the merits of thi s issue,

Manning fails to demonstrate prejudice regarding the State’s scrip tural references or parole

argument during closing argument of the sentencing phase of Manning’s trial. We thus find

this issue to be without merit.

IV. Cumulative Error33

¶68. As we have found no error, we necessarily find no cumula tive error requiring

post-conviction relief. If there is “no revers ible error in any part, so there is no reversible error

to the whole.” McFee v. State , 511 So.2d 130, 136 (Miss. 1987). S ee also Byrom v. State

,

863 So.2d 836, 847 (Miss. 2003); Caston v. State

, 823 So.2d 473, 5 0 9 (Miss. 2002); Hicks

v. State , 812 So.2d 179, 195 (Miss. 2002). Therefore, this issue is without merit.

CONCLUSION

¶69. Accordingly, for th e reasons herein stated, we find that Willie Manning is not entitled

to seek post-conviction relief; therefore, his post-conviction relief motion is denied.

¶70. PETITION FOR POST-CONVICTION RELIEF, DENIED.

SMITH, C.J., WALLER AND COBB, P.JJ., DICKINSON AND RANDOLPH, JJ.,

CONCUR. DIAZ, EASLEY AND GRAVES, JJ., NOT PARTICIPATING.